Exhibit 10.4
LOGISTICS SERVICE AND INFORMATION TECHNOLOGY SUPPORT AGREEMENT
This Logistics Service and Information Technology Support Agreement (hereinafter
referred to as this "Agreement") is entered into by and between the following
parties on May 28, 2007 in Shenzhen:
PARTY A: SHENZHEN NEPSTAR PHARMACEUTICAL CO., LTD.
Registered address: Xxxxxxx Xxxxxxxx X-00X, Xxxxxxx Xxxxxxxx, Xxxxxxxx
PARTY B: [REGIONAL NEPSTAR COMPANY]
Registered address:
Whereas:
(1) Party A is a limited liability company incorporated and registered in
Shenzhen in accordance with law of People's Republic of China ("PRC") to
engage in pharmaceutical wholesale, computer network technology development
and technology consulting and service in accordance with law as approved by
relevant governmental authorities of PRC;
(2) Party B is a limited liability company incorporated and registered in
[Place of Regional Nepstar Company] in accordance with law of PRC to engage
in pharmaceutical retail as approved by relevant governmental authorities
of PRC;
(3) Party A desires to provide logistics service and pharmaceutical retail
information technology system support and service to Party B, while Party B
is willing to accept such service.
Therefore, upon discussion, both parties agree on this Agreement as follows:
1. SCOPE OF SERVICE
Under this Agreement, the logistics service and information technology
support provided by Party A to Party B include pharmaceutical delivery and
information technology support. For details, please refer to Exhibit I
("Logistics Service and Information Technology Support").
2. EXCLUSIVE LOGISTICS SERVICE AND INFORMATION TECHNOLOGY SUPPORT; EXCLUSIVE
INTEREST
2.1 During the term of this Agreement, Party A agrees to provide relevant
Logistics Service and information technology Support to Party B as
Party B's
exclusive provider of Logistics Service and Information Technology
Support in accordance with terms and conditions hereunder.
2.2 Party B agrees to accept Party A as its exclusive service provider for
Logistics Service and Information Technology Support and Party B
further agrees that, without prior written consent of Party A, during
the term of this Agreement, Party B may not obtain any logistics
service and information technology support from any third party. Party
A may contract part or all of its obligations of service under this
Agreement to any third party as appropriate, on the basis of its own
demand.
3. CALCULATION, PAYMENT OF SERVICE FEE
3.1 Party B agrees to pay Party A service fee for its Logistics Service
and Information Technology Support ("Service Fee"). Both parties agree
that the Service Fee hereunder shall be 40% of Party B's pre-tax
profit every year.
3.2 Upon completion of auditing of Party B for each fiscal year, Party B
shall, base on the auditing results, pay the Service Fee to the
account designated by Party A in 30 days upon such completion and in
any circumstance no later than April 30 of each calendar year.
3.3 Party A has the right to release Party B from its obligation to pay
the Service Fee or adjust the amount of the Service Fee provided under
this article at any time.
3.4 The Service Fee payable by Party B to Party A hereunder is secured by
pledges on the equity interests in Party B owned by Party B's
shareholders other than Party A ("Party B's Other Shareholders"), and
by pledges on the equity interests in the Party B's Other Shareholders
owned by shareholders of Party B's Other Shareholders.
4. INTELLECTUAL PROPERTY
4.1 The copyrights of software developed by Party A and other relevant
software and the intellectual property of all research and development
results obtained by research and development of Party A in performance
of this Agreement and/or other agreements entered into by the parties
as well as any derivative rights shall belong to Party A. The
foregoing rights include, without limitation, patent rights, software
and technical documents as carrier, copyrights or other intellectual
property of technology materials and the rights to license third party
to use foregoing intellectual property or to transfer foregoing
intellectual property.
5. REPRESENTATION AND WARRANTY
5.1 Party A hereby represents and warrants as follows:
5.1.1 that Party A is a limited liability company legally incorporated
and effectively existing in accordance with law of PRC;
5.1.2 that Party A's execution and performance of this Agreement is
within its corporate power and business scope and Party A has
taken necessary corporate actions and obtained appropriate
authorization and has obtained requisite consent and approval
from third parties and governmental authorities. Such execution
and implementation is not in violation of any restriction of any
PRC law or contract binding on or affecting it; and
5.1.3 that upon execution, this Agreement constitutes lawful, valid
and binding obligation of Party A, enforceable in accordance with
its provisions.
5.2 Party B hereby represents and warrants as follows:
5.2.1 that Party B is a limited liability company legally incorporated
and effectively existing in accordance with law of PRC;
4.1.1 that Party B's execution and performance of this Agreement is
within its corporate power and business scope and Party B has
taken necessary corporate actions and obtained appropriate
authorization and has obtained requisite consent and approval
from third parties and governmental authorities. Such execution
and implementation is not in violation of any restriction of any
PRC law or contract binding on or affecting it; and
5.2.2 that upon execution, this Agreement constitutes lawful, valid
and binding obligation of Party B, enforceable in accordance with
its provisions.
6. CONFIDENTIALITY PROVISION
6.1 Party B agrees to take various reasonable confidential measures to
keep the privileged materials and information of Party A that it knows
or get access to in Party A's exclusive Logistics Service and
information technology Support ("Confidential Information") in
confidentiality. Without prior written consent of Party A, Party B may
not disclose, provide or transfer such Confidential Information to any
third party. Upon termination of this Agreement, Party B
shall, at the request of Party A, return any document, material or
software containing Confidential Information to Party A, or destroy it
directly and delete any Confidential Information from all relevant
memories and shall not continue to use such Confidential Information.
6.2 Both parties acknowledge and confirm that any oral or written material
exchanged with each other concerning this Agreement is Confidential
Information. Both parties shall keep all of such Confidential
Information in confidentiality and may not disclose to any third party
any relevant material, except (a) materials that have been or will be
known by the public (only if it is not disclosed by the receiving
party to the public without permission); (b) materials disclosed as
required by applicable law or rules or regulations of any stock
exchange; or (c) materials disclosed to the legal or financial
advisors of either party in connection with the transaction as
involved herein, provided that such legal or financial advisors shall
assume similar confidential responsibility as under this provision.
The disclosure by any employee or engaged entity of either party will
be deemed as disclosure of such party and such party shall be liable
for its breach in accordance with this Agreement.
6.3 The parties agree that whether this Agreement is held invalid,
modified, terminated or unenforceable, this Article 6 shall continue
to be valid.
7. INDEMNIFICATION
Party B shall indemnify and hold Party A harmless from any loss, damage,
liability or expense due to any action, claim or other request against
Party A arising from or caused by the content of Logistics Service and
Information Technology Support as required by Party B.
8. EFFECTIVENESS AND TERM
8.1 This Agreement is executed on the date as set forth above and becomes
effective on the date when the authorized representatives of both
parties sign this Agreement respectively.
8.2 Any amendment, modification or supplement to this Agreement shall be
made in writing and shall become effective when the authorized
representatives of both parties sign thereon.
8.3 Unless upon early termination in accordance with this Agreement or
provisions of additional relevant agreements between the parties
hereof, the term of this Agreement shall be ten years from the
effective date.
8.4 With written consent of both Party A and Party B, this Agreement may
be
renewed upon expiry. The term of renewed contract will be determined
by the parties hereof. If the parties fail to agree on renewal or the
term of renewed contract, unless Party A provides a written notice of
no renewal before the expiry, this Agreement shall be automatically
renewed for an additional year after expiry (including the expiry of
renewed contract).
8.5 If during the terms as provided in Section 8.3 and 8.4 hereof, the
business term (including any extended term) of either party expires or
terminates due to any other reason, this Agreement shall terminate
upon such termination, unless such party has transferred its rights
and obligations hereunder according to Article 11 of this Agreement.
9. TERMINATION
9.1 Termination on Expiry Date. Unless renewed in accordance with
Article 8.4 of this Agreement, this Agreement shall terminate on
the expiry date.
9.2 Early Termination. During the term of this Agreement, Party B may
not terminate this Agreement before expiry, unless there is any
gross negligence, default, other misconduct or bankruptcy on the
part of Party A. Notwithstanding foregoing, Party A has the right
to terminate this Agreement at any time through providing Party B
a written notice thirty (30) days earlier. During the term of
this Agreement, If Party B is in breach of this Agreement and
fails to correct its breach in fourteen (14) days after receiving
the written notice concerning its breach from Party A, Party A
may notify Party B in writing to terminate this Agreement.
9.3 Provisions after Termination. After this Agreement terminates,
the rights and obligations of the parties under Article 6, 11 and
13 hereunder shall continue to be valid.
10. GOVERNING LAW
The performance, interpretation and enforcement of this Agreement shall be
governed by law of PRC.
11. DISPUTE RESOLUTION
In the event of any dispute between the parties concerning the
interpretation and/or performance of any provision under this Agreement,
the parties shall resolve such dispute through discussion in good faith. If
the parties fail to agree upon resolution of such dispute in thirty (30)
days after one party requests to resolve such dispute through discussion,
either party may submit such dispute to China International Economic and
Trade Arbitration Commission for arbitration in accordance with its
then valid arbitration rules. The place of arbitration shall be Shenzhen
and the language to be used in such arbitration shall be Chinese. The
arbitration award shall be final and binding on both parties.
12. FORCE MAJEURE
12.1 "Force Majeure" means any event that is beyond the reasonable control
of one party and is not avoidable even under reasonable attention of
the affected party, including without limitation, governmental act,
natural power, fire, explosion, storm, flood, earthquake, tide,
lightening and war, provided that, the deficiency of credit, capital
or fund-raising shall not be deemed as an event out of reasonable
control of one party. The party affected by Force Majeure and seeking
to be released from fulfilling its obligation under this Agreement
shall notify such exemption event to the other party as soon as
possible and indicate its actions to be taken to fulfill its
obligation.
12.2 In the event of delay or suspension of implementation of this
Agreement due to any Force Majeure as defined above, the party
affected by such Force Majeure will not be required to assume any
liability under this Agreement in the extent of delay or suspension.
The affected party shall take appropriate measures to diminish or
eliminate the influence of such Force Majeure and shall try to resume
with performance of obligation delayed or suspended by such Force
Majeure. Upon elimination of Force Majeure, the parties agree to
resume performance under this Agreement at its best effort.
13. NOTICE
Any notice or other communication from either party in accordance with this
Agreement shall be made in writing in Chinese or English and may be sent by
personal delivery, registered mail, pre-paid mail or acceptable courier
service or facsimile to the following address or addresses of the related
party or both parties or other address as notified by the other party to
such party from time to time or address of others designated by the other
party. The notice shall be deemed to be delivered (a) for notice delivered
by personal delivery, on the date of personal delivery; (b) for notice sent
by mail, on the third (3) day after the prepaid air registered mail is sent
out (as indicated on the mail xxxx) or on the second (2) day after given to
the internationally recognized courier service institution, and (c) for
notice sent by facsimile, at the receiving time as indicated by
transmission confirmation letter of relevant document.
PARTY A: SHENZHEN NEPSTAR PHARMACEUTICAL CO., LTD.
address: Nepstar Building A-15B, Nanshan District, Shenzhen
Attention: Xxxxx Xxxxx
Fax: 0000-00000000
Tel: 0000-00000000
PARTY B: [REGIONAL NEPSTAR COMPANY]
14. ASSIGNMENT OF AGREEMENT
14.1 Without prior written consent of Party A, Party B may not transfer its
rights and obligations hereunder to any third party.
14.2 Party A may transfer its rights and obligations hereunder to any third
party. Party A shall provide Party B with written notice at the time
of such transference, and Party B's consent is not required with
respect to such transference.
15. ENTIRENESS OF AGREEMENT
Both parties confirm that upon effectiveness, this Agreement constitutes
the entire agreement and understanding between the parties hereof with
respect to the subject matter of this Agreement and completely supersedes
all prior oral or/and written agreement and understanding between the
parties before this Agreement with respect to such subject matter hereof.
16. SEVERABILITY OF AGREEMENT
If any provision under this Agreement is held to be invalid or
unenforceable due to conflict with relevant law, then such provision shall
be deemed to be invalid only in the extent of jurisdiction of relevant law
and may not affect the legal effect of other provisions hereof.
17. COPIES OF AGREEMENT
Two original copies of this Agreement shall be signed, each of which is
held by the parties separately. Each original shall have the same legal
effect.
IN WITNESS WHEREOF, both parties have caused their respective legal
representative or authorized representative to sign on this Agreement on the
date set forth above as proof of credit.
PARTY A: SHENZHEN NEPSTAR PHARMACEUTICAL CO., LTD.
Legal Representative: Xxxxx Xxxxx
Seal:
PARTY B: [REGIONAL NEPSTAR COMPANY]
Legal Representative:
Seal:
EXHIBIT I
LOGISTICS SERVICE AND INFORMATION TECHNOLOGY SUPPORT
1. Pharmaceutical Retail System STAR
Systems providing sound pharmaceutical retail and logistics information,
including product managing system, logistics service system and store managing
system. Services covering installation of the system in newly-established
distribution centers and newly-opened stores; providing system upgrade service
and maintenance.
2. Finance System K3
A finance managing platform, including daily finance work, financial analysis
and other functional supports for information system.
3. Office Automatization System
A unified office automatization platform system for the purpose of internal and
external email and office document reviewing and approving.
4. Supplier Information Support Service Platform
A information sharing service platform to provide suppliers with information
regarding sales and inventory.
5. Member Point Managing System
A member point managing system which assists in managing member scores, such as
point accumulation, exchange, exchanging purchase and award drawing. This is
helpful for efficient promotion.
